R v Griffin [2006] VSCA 60 (8 March 2006)

R v Griffin [2006] VSCA 60 (8 March 2006)

Last Updated: 21 March 2006

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 49 of 2005

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CRIMINAL LAW – Rape – Serious sexual offender under Part 2 of the Sentencing Act 1991 – Whether prior convictions were appropriately taken into account – Sentence not manifestly excessive – Appeal dismissed.

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WARREN, C.J.:

1 The appellant appeals against sentence on his convictionon one count of digital rape to a term of five years and six months'imprisonment with a non-parole period of three years.
2 Theoffence occurred on 11 November 2000, when the appellant and thecomplainant (whom I will refer to hereafter as "GB") attended a churchconference at a country venue. They had known one another for abouteight months prior to the offence. GB was 54 years old at the time andsuffered both an intellectual and physical disability. She lived aloneand required a walking frame to move about. The appellant was aqualified nurse and had worked with patients suffering fromintellectual and physical disabilities over some years previously. Hewas 46 at the time of the offence.
3 By arrangements made on theevening of 10 November 2000, the appellant agreed to provide GB withtransport from her home to the church conference venue. He collectedher at about 8:30am in the morning and drove her home again at theconclusion of the conference, arriving at the complainant's home about5:00pm. On that first occasion he waited outside the complainant's homefor about 15 minutes while she changed her clothes. He then drove herback to the conference venue for a dinner that was arranged thatevening and various evening activities. After the dinner, at about 8.30p.m., the appellant drove GB home and, after parking his car outsideher home, went inside with her. He told GB that she had two spots onher neck area and that he had formerly been a nurse at a particularcountry centre. The appellant then told GB to go into her bedroom. Shewent into her bedroom, followed by the appellant, and he then told herto take off her dress, repeating that he was a nurse and that he justwanted to look at the spots on her neck. He told GB to pull down thebedroom window blind. She was frightened of what might occur if she didnot obey him, and proceeded to pull down the blind and remove herdress. The appellant then told the complainant that he wanted to removeher bra. She complied. By then the complainant was wearing only a halfslip, stockings and underwear. The appellant told GB to sit on the bedand then, while she was so seated, he touched her breasts, telling herthat he was looking for sores. He repeated that he was a nurse and toldher that she was not to tell anyone about what he was doing. Theappellant then told GB to lie back on the bed and after she had done sohe pulled her underclothing and stockings partly down, and again toldher that he was a nurse and not to tell anybody. The appellant thenbegan feeling the complainant's genital and surrounding areas. At thatpoint she sat up and asked the appellant not to do what he was doing,and told him that she did not like it. The appellant responded bydirecting the complainant in a loud voice to lie down and be quiet. Theappellant then told GB to completely remove her underwear and open upher legs, repeating that he was a nurse and that he was looking forsores. The complainant did as she was told and the appellant continuedto feel around her genital area. By this point the appellant had pulledover a chair to the bed and was seated. In this position he theninserted his fingers into the complainant's vagina. This was the countof rape.
4 The appellant continued to tell GB that he was a nurseand that the complainant should not tell anybody about what hadhappened. After some time he removed his fingers from the complainant'svagina and told her that he was going to wash his hands. He told hernot to put any clothes back on, to stay in that position, and that hewould come back to the bedroom and talk to her. When the appellant wentout of the bedroom, GB put on a dressing-gown and when he returned shetold him they could not stay in the bedroom because she thought her sonmight be coming around soon. Whilst this was not true, the complainanttold the appellant this in order to get him out of the bedroom. Theappellant left the bedroom and remained in the house for about afurther five or ten minutes, during which time he repeatedly said tothe complainant that he was a nurse and talked about sores. Theappellant repeatedly told the complainant not to tell anyone what hadhappened. He then left.
5 A few days later the complainant reportedthe incident to members of the local church. Initially the appellantdenied any wrongdoing. When the appellant was arrested, he participatedin a record of interview, during which he admitted going to GB's homeon the first occasion and going inside the house. He denied goinginside her home on the second evening occasion, claiming that hedropped the complainant off outside her home. He also denied theallegations relating to the second occasion, including thecircumstances from which the count of rape arose.
6 The matterwent to committal, at which the complainant was cross-examined. Therewas no issue that that was done in a sensitive manner. Nevertheless itwas doubtless stressful for the complainant. Eventually, after somedelays and various adjournments, the matter came on for trial on 8November 2004. The appellant was arraigned and pleaded guilty to onecount of rape (count 1 on the presentment) and not guilty to one countof indecent assault (count 2 on the presentment). The appellantadmitted 17 prior convictions from two court appearances in 1991 and1997. Of those, twelve convictions were for indecent assault, two forcommon assault, two for behaving in an offensive manner and one fortheft.
7 On the plea, the learned sentencing judge had before himthe victim impact statement of the complainant, the presentment, andtranscript of plea and sentence with respect to the prior convictions,together with various medical reports and documents relating to theappellant. At the time of sentence, and since, the appellant wassuffering a number of medical conditions, including pancreatitis,diabetes, and various physical and psychological difficulties, amongthem some post-operative problems.
8 In the course of the plea,counsel for the Crown tendered the materials with respect to the priorconvictions. There was no opposition or objection by defence counsel tothat course. However, in the course of submissions, it was submitted bythe defence that his Honour should not rely upon those materials todraw inferences of humiliation and degradation. At this point it isappropriate to set out what actually occurred in the way the Crown putthose matters on the plea. Counsel, having tendered the earlierpresentment and transcript, informed his Honour of the relevant countsand the asserted fact that they related to young female nurses at thesame care facility for persons of intellectual disability where theappellant also worked. It was explained that the relevant period ofconduct spanned approximately twelve years, and that in each instancethe victim was younger than the appellant, naïve, new to their job, andthat the appellant was in a position of superiority. It was submittedto the judge below in this matter that the acts constituting the priorconvictions were acts likely to degrade and humiliate. The purpose ofthe submissions by the Crown, as was made quite plain, was todemonstrate that his Honour ought sentence the appellant in this caseas a serious sexual offender under Part 2 of the Sentencing Act.
9It is relevant for present purposes to broadly set out thecircumstances of the related prior convictions to which his Honour'sattention was directed and which were considered broadly in the courseof the plea. One count related to a young woman who was 19 at the timeof the offence, when the appellant approached her and grabbed herbreasts from behind when she was working in the laundry at the facilityfor persons with intellectual disabilities. This was referred to ascount 1. Count 2 of the prior convictions related to a 17-year-oldstudent who had been called into the appellant's office. He locked thedoor once she was in there and pushed her against the desk and tried tounzip her dress, and she struggled against him. The appellant becamemore aggressive and tore the zip away from the dress. The next relevantcount on the previous convictions was count 4. It related also to ayoung student nurse. At the time of that particular incident she was onduty at the swimming pool at the facility. She was engaged in putting ayoung girl on the toilet when she was attacked from behind and forcedinto the corner of the toilet cubicle by the appellant, where he ranhis hands over her breasts and vagina and tried to remove the youngwoman's bathers. The next count of the prior convictions that isrelevant was the fifth count. Again it related to a young nurse, whowas involved at the time in working and scrubbing the laundry floor ofthe relevant facility. The appellant came in and shut the door behind.He grabbed the young woman, put his hand up her dress, and grabbed theoutside of her vagina. She managed to escape but was then followed bythe appellant into another area, where he pursued her. The pursuit waseventually interrupted by a ward assistant. The next relevant count wascount 6. In that case a woman at the facility was alone in the laundry,when the appellant pinned her from behind, pulled her uniform off hershoulders, dropped her bra straps and fondled her breasts. The nextcount was count 7. It related to a 17-year-old nurse. She was subjectedto various acts of harassment by the appellant that ultimately led toan attack by him from behind when she was washing dishes in thekitchen. He put his hand up her dress and tore her pantihose andunderwear away and apparently said, "If I ever want you I will, andthere's nothing you can do about it." The next count was count 8. Itrelated to a trainee at the facility who had been there for about ninemonths. She was supervising clients at the swimming pool and was in thewater when, she said, she was groped in the genital area by theappellant. The next count was count 9. When the appellant was involvedwith a young woman in a toilet area, he followed her and while she waswashing her hands he approached her and began fondling her breasts. Theappellant pulled her underwear down, removed his penis and ejaculatednear her vagina. Another count was count 10, again involving a youngwoman at the facility, when the appellant grabbed her on her breast.There were other counts that were drawn to the attention of his Honourin this matter below, including one incident whereby the appellantpressed his penis against the individual concerned.
10 In the courseof the reasons for sentence below, his Honour noted the total of 17prior convictions and the fact that he had before him the presentmentand transcript of the plea in those matters. His Honour broadlydescribed the conduct constituting the prior convictions and noted thatthey had "considerable importance generally" in the case. His Honourthen proceeded to conclude his reasons and find that two of theprevious indecent assault convictions caused the appellant to fall tobe sentenced as a serious sexual offender.
11 Presently before theCourt there are two grounds of appeal, the first ground (ground 1)having been abandoned. Ground 2, the first ground I consider, relatedto the way in which his Honour below treated the prior convictions inthe course of his reasons for sentence. It was said that his Honourerred in five respects: first, that his Honour adopted an erroneousapproach to the question of serious sexual offenders and his treatmentof the appellant; secondly, his Honour's taking into account of mattersabout which the appellant was neither charged nor convicted; thirdly,that his Honour in any event did not have open to him the opportunityto make alleged findings in the course of his reasons for sentence;fourthly, that the procedure relied upon to make the findings wasflawed; but, more importantly, fifthly, that there were in any eventerrors made in the course of the findings. It was said with respect tothe last matter that, even if the findings made by his Honour wereproper and that it was appropriate for him to have regard to thetranscript of the earlier proceedings, the learned judge was wrong toconclude that the victims in each of the prior conviction incidentswere persons over whom the appellant was able to exert power orauthority. Ultimately with respect to ground 2, it was submitted thatfor these reasons the learned judge erred in a material matter and thatthe discretion was re-opened.
12 Having considered the submissionsboth in writing and put today by Mr McLoughlin, in my view there was noerror on the part of the judge with respect to the matters raised underground 2. A careful analysis of his Honour's reasons revealed that hisHonour did no more than, as was properly open to him, consider thematerial that was before him. Notably, there was no objection to thematters being put before him relating to the prior convictions. I havecarefully considered the transcript on the plea and I can see noindication, obliquely or otherwise, of an objection to the inclusion ofthose matters in the materials to be put before the learned judge forthe purposes of considering his sentence of the appellant.Consideration of these matters leads me to conclude that there was nomaterial error. On the contrary, the prior convictions of the appellantwere of the highest relevance to the circumstances before thesentencing judge and the matters which his Honour was entitled toconsider. His Honour did no more than consider those matters in thecourse of taking account of all the matters that were before him forthe purposes of the plea. It was open to his Honour to consider theearlier course of conduct of the appellant with respect to the victimsof the prior convictions, in particular the indecent assaults. It mightbe said, arguably, that his Honour need not have confined himself inhis path of reasoning to the two prior convictions for indecent assaultthat his Honour did. It might be said that it was indeed open to hisHonour to take account of all the relevant matters. In any event, as Ihave concluded, it was open to his Honour to take account of thesematters and his Honour did no more than make findings of fact on thematerial before him, and which he was quite entitled to do.
13 In my view, no material error has been made out. It follows that ground 2 fails.
14I turn then to the second ground (ground 3), which is a ground ofmanifest excess. The basis upon which the ground is put forward is thatthe judge failed to take account adequately of the plea of guilty, thedelay of four years between the offence and sentence, the appellant'svery serious ill health, and other sentences imposed for digital rape.
15Certainly in this case the appellant did plead guilty. Of course, itwas not at the very earliest opportunity and it was appropriate, whichdoubtlessly his Honour did, to take account of the timing of the pleaof guilty, and it is noted that in the course of the plea the Crownquite properly made the concession that the appellant was entitled tothe full benefit of that early plea. It was a matter that his Honourclearly took into account. As to the matter of delay, there certainlywas some delay, but some of it was of the making of the appellant; someof it was for various reasons which were not related to the appellant.There is the matter of the appellant's serious ill health. Thosematters were before the court and his Honour considered those mattersproperly as he ought. As to the matter of other sentences imposed fordigital rape, it is appropriate to note at the outset that the maximumpenalty for rape is 25 years. As his Honour observed, this was aserious case surrounded by unfortunate circumstances. It was open tohis Honour to take account of all the relevant matters, including thecondition of the victim, and, as his Honour observed, it was a seriousexample.
16 Taking account of these matters, together with theprior convictions of the appellant, in my view the sentence that wasimposed by his Honour was well within the range, and I do not regard itin any manner as excessive in all the circumstances. It follows thatground 3, the second ground (manifest excess), is not made out.
17 It follows further that in my view the appeal ought be dismissed.

BUCHANAN, J.A.:

18 I have some reservations as to whether the sentencingjudge was entitled to elevate the two prior convictions of indecentassault by effectively finding that they constituted a category ofoffence other than that for which the appellant was presented andsentenced. Nevertheless, I am of the opinion that the sentence imposedbelow was correct and no different sentence should be now passed.Accordingly, I agree with the disposition of the appeal proposed by theChief Justice.

VINCENT, J.A.:

19 I agree that this appeal should be dismissed.

WARREN, C.J.:

20 The order of the Court is that the appeal is dismissed.